Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Thursday, August 23, 2007

It looks like Antigua has beaten the US Government fair and square and at the Appellate level of the WTO on the latter's prohibition of offshore online gambling. See the story here in NYT.

Apparently, the US got nailed on issues such as not treating foreign online gambling sites in the same way it treats its own. Sounds like "national treatment" to me, but I must say I haven't yet read the decision.

The really interesting angle is that Antigua is threatening to retaliate by suspending its application to the USA of international IP law (i.e. the TRIPS agreement), since there isn't much else that Antigua could do that the USA would ever notice. According to the WTO site:

On 21 June 2007, Antigua and Barbuda requested authorization from the DSB, pursuant to Article 22.2 of the DSU, to suspend the application to the United States of concessions and related obligatins of Antigua and Barbuda under the GATS and the TRIPS Agreement. On 23 July 2007, the United States (i) objected to the level of suspension of concessions and obligations proposed by Antigua and Barbuda and (ii) claimed that Antigua and Barbuda's proposal does not follow the principles and procedures set forth in Article 22.3 of the DSU. At its meeting on 24 July 2007, the DSB agreed that the matter referred to by the United States be referred to arbitration.(emphasis added)

This is potentially a really serious situation for the USA. See the comments in the NYT from serious experts like John Jackson and Charles Nesson.

Rick: How can you close me up? On what grounds?Captain Renault: I'm shocked, shocked to find that gambling is going on in here![a croupier hands Renault a pile of money]Croupier: Your winnings, sir.Captain Renault: [sotto voce] Oh, thank you very much.[aloud]Captain Renault: Everybody out at once!

Turns out that Lucky and Flo can’t actually tell which DVDs are fake and which are real (never mind which are parallel imports) - which will also be a problem for many peace officers and customs officials (an maybe even some lawyers?), so we shouldn’t be too critical about Lucky and Flo. Besides, they are so cute.

It looks like the RCMP, OPP, etc . will be thrilled that they can now ask for awesome new resources to fight piracy and counterfeiting. And what normal peace officer wouldn’t prefer to raid flea markets than chase cigarette and drug smugglers carrying machine guns or even worse on speed boats in the dead of night?

In all seriousness, there are some issues here.

• Pirate and counterfeit goods are much more brazenly sold on the streets in mid town New York than anywhere I know of in Canada. (I admit that I don’t frequent flea markets.) The USA can’t control this problem on their own streets, including Fifth Avenue in NYC.

• There is a real danger that parallel imports will get caught up in this frenzy. These goods are genuine and legal by definition, but there will always be those who try to block them from importation, and who don’t mind if folks such as border officials, police, the press, and the populace get confused about the difference between pirated or counterfeit goods (illegal) and grey or parallel imports (legal). We have just recently succeeded at the Supreme Court of Canada in the Euro-Excellence v. Kraft case in fighting off an attempt to block parallel imports based upon copyright in some elements of the packaging of absolutely genuine Toblerone chocolate bars. However, I have little doubt that there will still be lots of goods and shipments that will be stopped at the border or seized in stores and fought about because of allegations of “infringement” that turn out to be unfounded because the goods are really parallel imports and not pirated or counterfeit goods and somebody doesn't understand or doesn't want others to understand the difference and the law, or simply as a result of mistaken or over zealous efforts by police and border officials.

Monday, August 20, 2007

There’s a Slyck interview from August 17, 2007 with David Basskin, spokesperson these days for the CPCC - the collector of private copying levies in Canada.

Leaving aside lots of other issues that merit comment, one answer was quite strange.

Slyck.com: Many people have argued for some time that sending lawsuits to people on P2P networks is a bad idea. Some are arguing that, instead of sending lawsuits, it's better to put a levy on ISPs to counteract what the industry considers losses over the internet. Is this something that the CPCC has considered? What are your thoughts on this idea?

David: No lawsuits have been brought in Canada against individuals with respect to unauthorized file "sharing"....

Excuse me, but what about BMG v. Doe, in which the big record companies sued 29 John and Jane Doe Canadian defendants for file sharing? The result, as we all know, is that BMG et al failed to get disclosure of the names of the actual 29 individuals who were alleged to be illegally sharing files.

If the law suits didn’t actually proceed any further, it wasn’t for lack of effort. The record companies - backed by CRIA - lost in both the Federal Courtand the Federal Court of Appeal. CRIA went through three prominent law firms to get this result. There was no lack of effort to sue individuals here.

These major record companies - who tried to sue 29 individuals in Canada - happen to be major stakeholders in the private copying levy scheme, through one of the collectives that comprise the CPCC. CRIA was probably the prime mover for the levy scheme in the first place.

I should remind readers that I acted against the record companies in the BMG case and I have long acted against CPCC concerning the private copying levies.

Tuesday, August 14, 2007

The Canadian government has made its report on the recent WIPO meeting concerning the proposed WIPO Broadcasting Treaty available. It follows below. The responsible officials are to complimented for providing this useful information in good detail and in a timely way.

As far as I know, this is not online.

HK*****************************

Report on June 2007 Meeting of the WIPO Standing Committee on Copyright and Related Rights

For several years the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) has been discussing a proposed treaty on the rights of broadcasting organizations. The WIPO Assembly in 2006 mandated the SCCR to have two special sessions devoted exclusively to the discussion of the proposed treaty. The first session was held in January 2007.

This is a report on the second special session of the SCCR which was held June 19 - 23, 2007 at WIPO headquarters in Geneva.

The primary purpose of the meeting was to finalize a Basic Proposal (draft treaty) on the rights of broadcasting (and cablecasting) organizations for purposes of a diplomatic conference tentatively set for Nov. - Dec. 2007. The meeting failed to agree on such a text. Therefore, there will be no diplomatic conference in 2007.

The Canadian delegation supported the recommendation that it would be premature to have a diplomatic conference in 2007.

The key elements of the formal Conclusions of the second special session are that the SCCR will resume regular sessions and the proposed treaty will remain on the agenda. Other items will also be on the agenda.

It is worth noting that a draft version of the Conclusions recommended aiming for a diplomatic conference in 2008 but a number of delegations opposed having any recommended date in the Conclusions and therefore the draft was not accepted by the meeting.

The next SCCR meeting is expected to be in late November (presumably in the time period set aside for the diplomatic conference). Regular SCCR meetings usually last for three days.

The Conclusions must be approved by the WIPO Assembly which meets Sept. 24 to Oct. 3 2007. At this point we assume the Conclusions will be accepted without amendment but that is impossible to say for certain. (A link to the Conclusion is below).

The June Meeting

Most of the meeting was in an informal session meaning that only national delegations (not observer delegations) were in the room. The informal session will not be included in the WIPO report of the meeting.

The basic document discussed was the Chair's non-paper of April 20, 2007 (see link below).

There were two formal submissions to the meeting made by Canada and Mexico (see link below). The US made a formal statement on its overall position (see link below).

The Chair worked on an expanded version of the April 20 non-paper which included many of the suggestions made by delegations during the informal meeting. This non-paper has no official status.

Comments Made on the April 20 Non-Paper

There were comments by delegations on many articles in the draft. The notes below summarize only some of the comments on the most important or controversial articles.

General

During the informal session one industrialized country suggested that the treaty should include a provision that the broadcaster could not assert rights against the content owner or a person licensed by the content owner.

Several developing country delegations objected to the fact that the public interest and access to knowledge provisions had been moved into the Preamble as opposed to being in substantive articles as in document SCCR 15/2.

Art. 7 Protection of Broadcasts

There was some discussion about whether the rights should be "exclusive rights" or whether other forms of protection should be allowed, e.g. a prohibition, administrative remedies. One industrialized country expressed the view that there should be no exclusive rights but that broadcasters should nevertheless have the ability to directly enforce remedies.

There was some discussion of the meaning of "deferred" in "deferred transmission". One developing country suggested that it might be 24 hours. One industrialized country also expressed the view that there should be a clear limit on the duration of this protection.

As in previous meetings certain delegations, especially India, objected to the fact that this wording would prohibit retransmission "by any means". Several delegations see this wording as giving broadcasters a positive right to authorize retransmission over the Internet. This may be reinforced by the fact that the right is "an exclusive right of authorizing" as opposed to a right to prohibit.

One developing country delegation said that the rights should be limited to "traditional" broadcasts and cablecasts, i.e. that the word "traditional" should be added to the text of the treaty. It said that this would be consistent with the mandate set by the 2006 WIPO Assembly.

One developing country delegation said that individual countries should be allowed to opt out of any aspect of Art. 7. (The Canadian submission would allow a limited opt-out with respect to free over-the-air signals.)

The Canadian delegation outlined its position on retransmission as stated in its written submission.

Art. 9 Protection of Encryption and Rights Management Information

As noted in its formal statement (see link above) the USA favoured mimicing the wording in the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Some developing country delegations are opposed to any article of this type.

The Canadian delegation said that the electronic rights management information protected under the proposed article should be factual or identifying information.

Art. 10 Limitations and Exceptions

A number of developing country delegations have made written submissions on this issue.

At the meeting, some delegations suggested that the first paragraph (which allows for limitations and exceptions comparable to those for copyright works and other related rights) should be made mandatory. One industrialized country suggested that the exceptions in the first paragraph should be made mandatory on a mutatis mutandis basis.

Other Issues

There remain wide divergences of views including on what is meant by "signal-based approach" to protection.

Conclusion / Future Work

At this point it is impossible to predict how the discussions may evolve in the SCCR meetings in 2008.

Contacts for Further Information

For any further information on the meeting or future work please feel free to contact:

Wednesday, August 08, 2007

This took me to the NYT Editorial. Read it while you still can for free before the paywall goes up and Access Copyright tries to "tax" you for browsing and - heaven forbid - printing.....

The editorial decries the excessive restrictions and oligopolist rents earned by US cellular companies and the resulting gap in services and price compared to other nations.

The closed nature of America’s wireless networks is the main reason that its cellphone technology is so primitive compared with Europe’s and Japan’s. The F.C.C.’s new rules go part of the way to solve this, but unfortunately, American consumers have once again been denied a truly open and competitive cellular market.

Everyone knows that US cellular prices and technology are vastly better than in Canada.

So where does that put Canada....????

CRTC (Konrad von Finckenstein) and Competition Bureau (Sheridan Scott) - "please phone home" (for those who remember the long missing E.T.) That is if you can afford the roaming charge.

And what does that have to do with this blog?

Excess oligopoly verging on monopoly is strangling Canadian competitiveness. Canada's copyright policy is rapidly going in this direction, particularly with respect to collectives.

Thursday, August 02, 2007

One thing that legislators should be forced to recite every day - and which law schools should hammer home in every class - is that the worst possible ridiculous consequence of any law is bound to occur sooner rather than later.

So - a young lady in Arlington, VA has been charged under anti-camcording legislation for taking a 20 second clip on what is reported to be a Canon Power Shot (which is apparently a digital still camera with limited “movie” capability, as have most still cameras and cell phones now). She thought her little 13 year old brother might like to see the movie too - so she was advertising, in effect, for the theatre and the movie producer.

She even arrived late at the movie, which doesn't fit with the profile of your average professional pirate. Her camera was confiscated. She is banned for life from this theater.

The very model of a modern pirate? Just the type of person that cries out for "zero-tolerance policy at the theater level"?

The powers that be in this case are defending their zero tolerance policy.

She faces a year in jail and a $2,500 fine.

If her story is true, she is being prosecuted and could have a criminal record, a fine and jail time for recording 20 seconds of a film on a digital still camera at presumably very low quality in order to show her little brother so that he would come to see the movie and buy a ticket.

Is this a case of bad law or a bad enforcement call or both?

At least the young lady has capable representation and some notable people caring about her.

Coming soon to a theatre near you in Canada?

Hopefully, the Canadian statute would not permit this kind of charge in such a de minimis situation.

And hopefully our enforcement apparatus would not let it get off the ground.

An important warning shot has been fired about overblown copyright warnings that literally threaten jail sentences and severe fines for activity that is very often fair use or fair dealing, or simply not covered by copyright law in the first place.

Much ado about the complaint to the FTC about frequently ridiculous copyright warnings on TV, in theatres, in books, on DVDs, etc.

A few comments.

The complaint is not from the usual copyleft wing. It is from a trade group that includes Microsoft and Google.

A coalition of American library associations called the Library Copyright Alliance have strongly supported the complaint. It would be really nice if Canadian libraries could more often take such strong, unified and useful positions on copyright matters.

Judge Posner raised the flag on this three years ago in a remarkable guest blog he did on Larry Lessig's site:

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright's breadth. Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher's (or movie studio's) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn't know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit.

...

What to do about such abuses of copyright? One possibility, which I raised hypothetically in my opinion in WIREdata, pp. 11-12, is to deem copyright overclaiming a form of copyright misuse, which could result in forfeiture of the copyright. For a fuller discussion, see the very interesting paper by Kathryn Judge...

As usual, Judge Posner in his scholarly capacity was way ahead of the curve.

BTW, the article he mentions by Kathryn Judge is “Rethinking Copyright Misuse” (2004), 57 Stan. L. Rev. 901. Ms. Judge clerked for both Justice Posner of the Seventh Circuit and Justice Breyer of the U. S. Supreme Court - which is extraordinary.